Gordon v. State

735 S.W.2d 510, 1987 Tex. App. LEXIS 7614
CourtCourt of Appeals of Texas
DecidedJune 18, 1987
DocketNo. 01-85-0775-CR
StatusPublished
Cited by4 cases

This text of 735 S.W.2d 510 (Gordon v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gordon v. State, 735 S.W.2d 510, 1987 Tex. App. LEXIS 7614 (Tex. Ct. App. 1987).

Opinions

OPINION

COHEN, Justice.

State’s Motion for Rehearing

The State's motion for rehearing is granted. We withdraw all prior opinions in this case and substitute the following opinions.

The jury assessed appellant’s punishment at 40 years imprisonment after finding her guilty of murdering her sister, Vigo Techeira, on November 5, 1984. Appellant asserts that the trial court erred in allowing into evidence a videotape of the murder scene; in denying a mistrial following “an emotional outburst” from a State’s witness; and in accepting a verdict based upon insufficient evidence. We overrule all points of error and affirm the judgment.

Appellant’s second point of error asserts that she was denied a fair trial by the [511]*511introduction of an inflammatory videotape of the murder scene. The videotape is part of the appellate record. It is approximately 10 minutes in length and contains no audio. It depicts various parts of the deceased’s residence, the scene of the murder. Approximately half of the tape depicts the victim’s body.

In addition to the videotape, the State introduced 46 still photographs of the same scenes. Appellant objected to only four of these on the sole basis that they were enlarged.

Appellant objected to the entire videotape, rather than to any specific part of it, complaining that it was prejudicial and inflammatory. The court overruled the objection and admitted the videotape.

It is well settled that photographs are admissible if a verbal description of the same scene would be admissible, unless their probative value is very slight and their inflammatory effect great. Thomas v. State, 701 S.W.2d 653, 660 (Tex.Crim.App.1985). Former case law that limited the admission of gruesome photographs, unless they tended to resolve a disputed fact issue, has been overruled. See Terry v. State, 491 S.W.2d 161, 163-64 (Tex.Crim.App.1973); Martin v. State, 475 S.W.2d 265, 268 (Tex.Crim.App.1972).

Believing that videotapes should be judged by the same legal standard that governs the admissibility of photographs, we look to Thomas, 701 S.W.2d 653, for guidance. Having viewed the entire tape, we conclude that it has substantial probative value. It shows in detail the location, nature, and extent of the victim’s wounds, the location of blood in the bedroom and bathroom, the disarray of furniture within those rooms, as well as other facts that could have aided the jury in deciding the case. The trial court did not abuse its discretion by admitting the tape into evidence.

The second point of error is overruled.

The third point of error asserts that the trial court erred in denying a mistrial following “an emotional outburst” from one of the State’s witnesses.

During cross-examination of Dan-ette Aguirre, defense counsel sought to impeach Aguirre’s testimony by demonstrating that it included facts that were not mentioned in the written statement she gave on the day that she discovered the body. The following transpired:

Q. (By defense counsel) Well, this is a • statement, this is a statement that you signed, Dannette?
A. I know. But that day, if you would have felt like me I didn’t know if I was coming or going. I walked into that police station and I felt like I was floating. I didn’t know if I was going to come or go.
Q. I understand.
A. No, you don’t understand. I wish you could have walked in there and had to live with what I have had to live with these past few days and can’t sleep. Can’t take a shower. Can’t even listen to the radio. Now you ask me how that would feel. I even had to go get help from a doctor because I couldn’t sleep.

The trial judge immediately granted appellant’s request for a recess and excused the jury for the day. According to the record, defense counsel then stated:

“I would like to, I believe the police acquire has to inflame and prejudice this jury we can not have a fair and safe trial.”

The court’s response was, “That’s overruled.”

Appellant never requested a mistrial or an instruction to disregard, which could have cured the harm, if any, from this particular event. No error has been preserved.

Moreover, case law requires that the accused demonstrate a reasonable probability that the complained-of conduct interfered with the jury’s verdict. Landry v. State, 706 S.W.2d 105, 112 (Tex.Crim.App.1985). The record reflects that the prosecutor briefly referred to Aguirre’s testimony during closing argument and compared it to appellant’s calm demeanor when testifying. The prosecutor’s reference was not objected to, and it occupies half of one page [512]*512out of a 22 page argument. Such a relatively innocuous reference is not enough to constitute a reasonable probability that the conduct interfered with the jury’s verdict, especially in light of the immediate, lengthy recess, the gruesome evidence, and the lengthy record. Point of error three is overruled.

Appellant’s first point of error asserts that the evidence is insufficient to support the verdict.

In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict in order to determine whether any rational jury could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155 (Tex.Crim.App.1981). Although both parties characterize this as a circumstantial evidence case, the test for determining the sufficiency of the evidence is the same in circumstantial evidence cases as it is when the State relies on direct evidence. Garrett v. State, 682 S.W.2d 301 (Tex.Crim.App.1984).

Because of the nature of the case, we will set forth the evidence in considerable detail.

Appellant and her sister, Vigo, were originally from Antigua, a Caribbean island. Vigo married Maurice Teeheira, and they lived on Saint Croix in the Virgin Islands. In 1966, Maurice first met appellant when he visited Vigo’s family. Around 1976, Maurice and Vigo moved to Baytown, Harris County, Texas, and appellant moved in with them approximately one year later. Also living in the home were Carl and Alonzo, the sons of Maurice and Vigo, who were ages 18 and 13, respectively, at the time of trial.

On two occasions, Vigo was told by Alonzo that while she was gone from the house at night, Maurice had visited appellant in appellant’s bedroom.1 Vigo discussed this with Maurice on one occasion and with appellant on another. On two occasions, Vigo told appellant to move out and get an apartment of her own. However, appellant did not want to move out.

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Bluebook (online)
735 S.W.2d 510, 1987 Tex. App. LEXIS 7614, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gordon-v-state-texapp-1987.